On the heels of a Government Accountability Office (GAO) audit that found “significant problems” with the Occupational Safety and Health Administration’s Whistleblower Protection Program, OSHA recently announced several comprehensive changes to the program all employers should know about.

In an open announcement dated August 1, 2011, Assistant Secretary of Labor for OSHA, David Michaels, stated that as a result of the GAO audit, OSHA conducted its own internal “Top to Bottom” review to examine its “national and regional program structure, operational procedures, investigative processes, budget, equipment and personnel issues.”  This internal review confirmed many of the GAO’s findings and made several recommended changes to various operational aspects of the Whistleblower Protection Program, including:

1)         Restructuring – reporting requirements will now proceed directly to the Assistant Secretary as opposed to being housed in the Directorate of Enforcement.  OSHA claims that this will “increase consistency, timely investigations, and better customer service.”  As part of this, OSHA has hired more than 25 new investigators and also appointed a new Acting Director.  Further, an increase of $6.1 million in funding has been requested for the purpose of hiring an additional 45 investigators.

2)         Program Policy – OSHA intends to publish a new edition of the Whistleblower Investigations Manual, which has not been updated since 2003.  Some of the important changes in that Manual will include:

  • Requiring investigators in all cases to “make every attempt” to interview the Complainant and assuring that prima facie elements of the allegations have been “properly identified.” in the intake process;
  • Clarifying that – regardless of the statutory provision – all whistleblower complaints may be filed orally or in writing in any language;
  • Providing for new chapters for the processing of complaints filed under the Federal Railroad Safety Act (FRSA), National Transit Systems Security Act (NTSSA), and Consumer Product Safety Improvement Act (CPSIA), and providing “significant updates” to those covering the Surface Transportation Assistance Act (STAA) as well as the Sarbanes-Oxley Act (SOX)

While these changes are comprehensive and the goals laudable, the impact it will have on the actual process and Whistleblower Protection Program remains to be seen, particularly because the Manual has yet to be published.  Moreover, given the dire economic situation prevalent at nearly all levels of government, the requested additional funding may not even come to pass.

The Department of Labor’s press release announcing these changes can be viewed here: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=20394

Jim Wright concentrates his practice in the area of complex and commercial litigation, particularly in the areas of energy, labor and employment and construction law as well as other business matters. He has also represented professionals before state licensure boards. During his career, he has tried numerous cases in state and federal courts throughout West Virginia and Ohio. He has also argued cases before the United States Court of Appeals for the Sixth Circuit, the West Virginia Supreme Court of Appeals and various appellate courts in the State of Ohio. Jim is a also a recognized leader in the profession, having served as a member of the West Virginia State Bar Board of Governors and currently serving as the State Bar’s Vice President.
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